Benning Const. Co. v. Dykes Paving and Const. Co., Inc.
| Citation | 263 Ga. 16,426 S.E.2d 564 |
| Decision Date | 08 March 1993 |
| Docket Number | Nos. S92G0980,S92G1050,s. S92G0980 |
| Parties | BENNING CONSTRUCTION COMPANY, et al. v. DYKES PAVING & CONSTRUCTION COMPANY, INC. (two cases). |
| Court | Supreme Court of Georgia |
H. Quigg Fletcher III, Kilpatrick & Cody, Atlanta, for Benning Const. Co.
DeWitte Thompson, Jr., Thompson & Slagle, Norcross, for Dykes Paving and Const. Co.
Robert B. Ansley, Jr., George Papaioanou, Smith, Currie & Hancock, Atlanta, amicus curiae.
Appellant Benning Construction Company (Benning) is a general contracting firm which entered into an agreement with Shaheen & Company (Shaheen) to construct an office and warehouse facility. Benning subsequently subcontracted with Scarboro Paving (Scarboro) to perform the paving, curb, and gutter work associated with this project.
Although Benning's contract with Scarboro specifically prohibited assignment of the contract without Benning's written consent, Scarboro entered into a contract with Lanier Paving Company (Lanier) to install the asphalt. Benning was unaware of this contract. Some evidence in the record indicates that Benning's superintendent observed Lanier's employees participating in the paving work. However, the superintendent never informed Benning's project manager or president of this fact, and they were unaware of Lanier's participation until the asphalt had been completely installed. Further, the project superintendent was not a party to the contract, and according to testimony at trial, he did not have the authority to approve an assignment of Scarboro's contract to Lanier. Rather, there was testimony that the project manager and the president of Benning Construction alone had the authority to waive the anti-assignment clause, and that Scarboro did not ask either for a waiver. There is no evidence that either of these persons had knowledge of Lanier's involvement.
Lanier obtained the necessary materials from appellee Dykes Paving and Construction Company (Dykes), and paved the parking lot.
Shaheen rejected the parking lot, alleging that it failed to meet contractual specifications, and demanded that it be replaced or resurfaced. When Scarboro refused to comply with this demand, Benning paid another subcontractor to resurface the parking lot. Additionally, Dykes demanded payment from Benning for the materials Lanier had used to pave the original parking lot after Lanier failed to pay for them. When Benning refused to pay, Dykes notified Shaheen and filed a materialman's lien for the cost of the materials supplied to Lanier. Benning provided a bond to discharge the lien, with appellant St. Paul Fire and Marine Insurance Company (St. Paul) as surety.
In a series of subsequent legal actions, Lanier declared bankruptcy; Benning obtained a default judgment against Scarboro; and Dykes brought this action to foreclose its lien. In the action to foreclose the lien, the jury found in favor of Dykes, and returned a verdict against Benning and St. Paul in the amount of the cost of the materials supplied to Lanier, prejudgment interest, and $6000 attorney fees.
The Court of Appeals affirmed, Benning Construction Company v. Dykes Paving, etc., Company, Inc, 204 Ga.App. 73, 418 S.E.2d 620 (1992), holding that Lanier was a subcontractor within the meaning of OCGA § 44-14-360(9), and, therefore, Dykes was entitled to a claim of lien under OCGA § 44-14-361.1. We granted certiorari to determine whether the Court of Appeals erred in this holding.
OCGA § 44-14-360(9) provides that a " 'subcontractor' means, but is not limited to, subcontractors having privity of contract with the contractor." OCGA § 44-14-361(b) provides that a lien will attach to "real estate for which labor, services, or materials were furnished if they are furnished at instance of the owner, contractor, or some person acting for the owner or contractor." (Emphasis supplied.) Both this court and the Court of Appeals have held that the lien statutes, being in derogation of the common law, are to be strictly construed against the lien claimant, and that strict compliance is required in order to enforce them. Consolidated Systems, Inc. v. AMISUB, 261 Ga. 590(1), 408 S.E.2d 109 (1991); Roberts v. Porter Davis, etc., 193 Ga.App. 898(3), 389 S.E.2d 361 (1989).
In deciding this case, the Court of Appeals relied on Tonn & Blank, Inc. v. D.M. Asphalt, Inc., 187 Ga.App. 272, 370 S.E.2d 30 (1988). In Tonn & Blank the Court of Appeals held that in absence of a clearer definition of "subcontractor" than that...
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